All cases asking for damages for lost wages and benefits incurred as a result of discriminatory conduct by a former employer face the issue of “mitigation,” or minimizing damages. The law on employment discrimination mandates that the victim of discrimination do everything he or she can to reduce their loss.

Assuming that a person is fired or laid off from a job and that the reason for that action violated one of the anti-discrimination laws (such as those prohibiting age, gender, race, national origin, religion or disability discrimination), that person is still required to actively seek new employment. The new job which is sought, to satisfy the requirement of “mitigation,” should be one which is consistent with the education and experience of the person who has been discriminated against. A person is not required, however, to accept employment which is at a location beyond reasonable commuting distance or is for a salary which is substantially lower than what was paid in the former job.

In many cases, the victim has to apply for very many jobs. It is imperative to keep a log of all jobs applied for (including how the person learned about the potential job), with a notation of the type of job, the salary, the name of the potential new employer and whether the applicant had an interview. If there was an offer of a job, the specifics of the job offered, including location, salary and duties, should also be noted. If the person did not accept the job offered, a reason for the rejection should be stated.

The reason for keeping the log is that in almost all lawsuits for discriminatory conduct, the former employer’s attorney will, during pretrial proceedings, ask for the information which is contained in the log. If there is no detailing of the effort to obtain new employment, the claim of “failure to mitigate” will be made by the defense. If successful, this defense may significantly reduce the amount of damages for lost wages and benefits which might be awarded at trial.

Therefore, all victims of employment discrimination are well advised to not only look for a new job, but to document all efforts in doing so.